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TMI Blog2012 (3) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... es" as defined under section 65(12) of Finance Act, 1994. The three different appeals are filed by three different branches of the Appellant. There is slight difference in relevant periods in the three appeals. But in all cases the period falls within the period of April 06 to Sep 06. 2. There is no dispute whether activity carried out by the appellants fall within the description of the activity described in section 65(12). The dispute is whether a co-operative society can be held to be liable for service tax in respect of such activity. For deciding the taxability the relevant sub-sections are 65 (105) (zm) and 65(12) of Finance Act 1994. These provisions as it stood after amendment by Finance Act, 2006 with effect from 18-04-2006 till t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding bank guarantee, overdraft facility, bill discounting facility, safe deposit locker, safe vaults; operation of bank accounts; and (b) foreign exchange broking provided by a foreign exchange broker, other than those covered under sub-clause (a);" 3. The Short point for decision in these appeals is whether a co-operative society is covered by the expression "or any other body corporate, or any other person" used in sub-section 65 (105) (zm) and sub-section 65 (12). 4. The Appellants rely on the section 2 (7) of the Companies Act 1956 which reads as under: "(7) " body corporate" or "corporation" includes a company incorporated outside India but does not include- (a) a corporation sole; (b) a co-operative society registered und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 (Raj); (d) CIT Vs. Laxmansingh (1986) 159 ITR 983 (Raj); (e) HH Maharaja Rana Hanuwantsingh Vs. CIT 77 ITR 1007 (Raj); (f) C. A. Abraham Vs. ITO (1961) 41 ITR 425 (SC): (g) K. K. Kochunni Vs. State of Madras -1960 AIR 1080 (SC); (h) S. W. Sah. Sahakar Karkhana Ltd. Vs. CIT 253 ITR 226 (Bom); 8. The argument of the Ld AR for revenue is that a co-operative society will be covered by the expression "any other person", because such societies also are doing banking business like any other bank. The exclusion made in Companies Act for keeping the co-operative societies out of the controls specified in Companies Act cannot have the result of excluding such societies from the ambit of the entry in section 65 (105) (zm) and 65(12) 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many respects co-operative society is of the same genus as a company. It was necessary to keep the co-operative society out of the many controls of the Companies Act. So it is specifically excluded though both are of the same genus. The fact that co-operative societies are controlled not by the elaborate procedure of companies Act but by similar but simplified controls through different enactments does not mean that for taxing the services rendered by co-operatives, such societies would be on a different footing as compared to services provided by a company unless and until such intention is specifically manifested in the taxing statute itself. Since no specific exclusion is made in Finance Act, 1994, co-operative societies will be covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company or a financial institution including a non-banking financial company or any oilier body corporate or any other person to a customer are liable to service tax under section 65(105)(zm). The expression 'any other person' appearing in section 65(105)(zm) is to be read ejusdem generis with the preceding words. The expression 'other financial services' appearing under section 65(12)(a)(ix) is a residuary entry and includes; those services which are normally rendered by banks or financial institutions. 4. Hence, banking and other financial services provided by a banking company or a financial institution or a non-banking financial company or any other service provider similar to a bank or a financial institution are liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that a bank run by a co-operative society will not come within the scope of entry 65 (105) (zm) and 65 (12) during the relevant time. 15. Now the only issue to be examined is whether penalty is justifiable in the facts of the case. The Appellants argue that no penalty can be imposed on them because the issue involved is a matter of interpretation of law. They rely on the following decisions :- (a) CIT Vs. Madho Pd Jatia (1976) 105 ITR 179 (SC); (b) Chandrapal Bagga Vs. ITAT (2003) 261 ITR 67 (raj) (c) CIT Vs. Harshavardhan Chemicals (2003) 259 ITR 212 (raj) CIT Vs. Sumerpur Truck Operator Union 203 CTR (Raj) 205. 16. This is a case where the appellants were registered as a service tax assessee and paying service tax. From one po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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